Noise
Directive 2002/30/EC of the European Parliament and of the Council of 26 March 2002 on the "establishment of rules and procedures with regard to the introduction of noise-related operating restrictions at Community airports" (PDF)
Aviation and Noise (AEF,FoE, APC, CPRE, T2000) Dec 1998
World Health Organisation - Community Noise (Birgitta Berglund, Thomas Lindvall), 1995
International Civil Aviation Organisation - Aviation and Noise
http://www.icao.int/icao/en/env/noise.htm
Planning
The UK planning system plays an important role in controlling the environmental effects of airport and airfield operations, as well as setting general policies relating to new development or expansion.
The AEF can advise its members on: planning legislation and regulations; development plans; public inquiries; permitted development rights; environmental assessment; planning agreements; and conditions.
In addition, our library also contains a large number of previous Government planning decisions relevant to aviation, and copies of airport environmental statements.
Planning Green Paper
http://www.planning.odpm.gov.uk/
Office of the Deputy Prime Minister - Planning (formerly DTLR) Noise can cause adverse health effects....
UK Government Planning Policy
Planning Policy Guidance Notes (PPGs)
PPG1: General Policy and Principles
(Original Release Date: February 1997)
PPG2: Green Belts
(Original Release Date: January 1995)
PPG13: Transport
(Original Release Date: March 1994)
PPG24: Planning and Noise
(Original Release Date: September 1994)
Regional Planning Guidance
RPG1: Regional Planning Guidance for the North-East
(Published in September 1993 - Currently Under Revision)
RPG6: Regional Planning Guidance for East Anglia to 2016
(Published in November 2000)
RPG8: Regional Planning Guidance for the East Midlands
(Published in January 2002)
RPG9: Regional Planning Guidance for the South East
(Published in March 2001)
RPG10: Regional Planning Guidance for the South West
(Published in September 2001)
RPG11: Regional Planning Guidance for the West Midlands
(Published in December 1998 - Currently Under Revision)
RPG12: Regional Planning Guidance for Yorkshire and The Humber
(Published in October 2001)
RPG13: Regional Planning Guidance for the North West
(Published in May 1996 - Currently Under Revision)
Planning Circulars
Circular 02/02: Planning Inquiries Into Major Infrastructure Projects: Procedures
Aviation noise and Planning Control (extracted fron AEF web-site)
Aircraft noise and emissions are specifically excluded from the Environmental Protection Act 1990 and the discretionary powers available to the Secretary of State for Transport have limited applications and, to date, have not been widely employed.
The planning system thus assumes an important role in assessing the effects of development and, where necessary, providing and enforcing a framework of controls.
From a planning standpoint, the means of limiting or controlling the environmental effects of aerodrome operations involve four related mechanisms, namely: development plans; development control (including enforcement and the use of conditions); planning injunctions; and, planning agreements/obligations.
By 1996 every area in the country should be covered by a development plan, which is the starting point for the decision-making process to determine planning applications and appeals (including appeals relating to enforcement). It is essential that interested parties continually monitor the status of plans and make representations where appropriate.
In order to approve a detailed or outline planning application which may otherwise be deemed unacceptable, a local planning authority (LPA) may attach conditions.
Generally conditions must be imposed for a planning purpose, must relate to the proposed development, and must not be unreasonable.
Where a planning condition is breached, or in cases where development occurs for which planning permission has not been obtained, a LPA may take enforcement action to remedy the situation.
Enforcement can often be a lengthy process, and a LPA may apply for a planning injunction when prompt action is required to avoid, for example, irreversible damage occurring.
In view of the limited scope of imposing planning conditions, and the technical complexities involved when enforcing breaches of planning control, a LPA can enter into a restrictive covenant with a developer.
From 25 October 1991 these are known as planning obligations (a developer can unilaterally enter into an obligation). Obligations are flexible but a test of reasonableness does apply. It should also be noted that legal obligations may be discharged or modified by the Secretary of State for the Environment. Covenants are perceived to exert more control over the operation of an aerodrome because of their status in law.
LPAs also prefer covenants since it provides a flexible approach to enforcement.
The effectiveness of planning obligations and conditions is closely related to the level of monitoring and the accurate keeping of records.
The Role of the Planning System (extracted fron AEF web-site)
Several Government departments and authorities have responsibility for regulating aspects of the aviation industry in the United Kingdom: the Civil Aviation Authority (CAA), licenses air transport and aerodromes (and other duties relating to the registration of aircraft, safety and the navigational control of air traffic).
The Secretary of State for Transport is charged with implementing measures which primarily encourage the development of civil aviation.
Local planning authorities, and the Secretary of State for the Environment, must regulate aerodrome development and land-use in accordance with national, regional and local planning policies and guidance.
A national airports policy aimed at providing a framework for decision-making has not been developed.
Most of the regulatory bodies act independently: decisions are frequently taken with few statutory requirements to consult and liaise with each other.
No one body has sole responsibility for controlling the environmental impacts of aircraft and aerodrome operations.
Local Environmental Health Officers (EHOs) - usually the first point of contact for many people (in fact, a recent survey showed aircraft noise to be one of the top ten complaints received by EHOs) - have no powers to control either the noise or the emissions caused by aircraft: both are specifically excluded from the Environmental Protection Act 19901 and its predecessor the Control of Pollution Act 1974. This stems from a long-standing section of the Civil Aviation Act (currently section 76[1] of the Civil Aviation Act 1982) which states that:
"no action shall lie in respect of trespass or in respect of nuisance, by reason only of the flight of an aircraft over any property at a height above the ground which, having regard to wind, weather and all the circumstances of the case is reasonable, or the ordinary incidents of such flight, so long as the provisions of any Air Navigation Order.... have been duty complied with... ".
The available powers to mitigate aviation's impacts are primarily focused on aerodromes and are scattered amongst current aviation and planning legislation.
It is often difficult to identify the extent to which the planning system should be used to control aviation operations.
The scope of controls available to the planner is provided in Planning Policy Guidance Note PPG 1 "General Policy & Principles", which states that:
"Planning legislation should not normally be used to secure objectives achievable under other legislation"
(PPG 1, Paragraph 35)
What alternative powers are available to regulate the environmental impacts of aircraft and aerodrome operations?
- "other legislation" will refer mainly to the provisions of the Civil Aviation Act 1982.
The 1982 Act provides for the establishment of facilities for consultation, where interested parties can discuss any matter relating to the operation of an aerodrome, including environmental aspects.
Many aerodrome managements operate consultative committees to fulfil the requirements of section 35 of the Act, but only those aerodromes actually designated under this section by the Secretary of State for Transport are obliged to provide facilities, although there are others which are operated on a voluntary "good neighbour" basis or which are administered by the local planning authority (LPA). A committee only has the power to advise the aerodrome management and make recommendations.
Some problems cannot always be resolved through consultation at local level.
Where this is proven to be the case, the Secretary of State for Transport has other discretionary powers available, most notably under sections 5, and 78 to 80 of the Act. The latter sections empower the Secretary of State to publish local regulations to limit the effect of noise and vibration connected with the taking-off or landing of aircraft at an aerodrome, and to require an aerodrome to provide grants towards the cost of soundproofing buildings.
Only Heathrow, Gatwick and Stansted airports have been designated, and no aerodrome has yet been designated under section 5 of the Act (despite several applications) which places a duty on the CAA to take account of environmental factors when issuing an aerodrome licence: in granting the licence, the CAA must be
It is also material that the Airports Act 1986 provides for traffic distribution rules (Section 31), the power to limit aircraft movements (S.32), schemes for allocating capacity at airports (S.33), matters to be taken into account by the CAA (S.34), and regulation of availability of airports by references to airport licences (S.35). The traffic rules, which may even specify types of aircraft permitted or otherwise at an aerodrome, are made by the Secretary of State for Transport following consultation with the CAA, which in turn must consult airport and aircraft operators likely to be affected. The power to limit aircraft movements in any particular airport lies with the Secretary of State.
The discretionary and limited applications of existing legislation to control noise and vibration caused by aircraft landing or taking-off at aerodromes, the planning system must play an important role in assessing the environmental impacts of proposed aviation developments, and where necessary, ensuring that a framework of controls is provided to limit effectively the potential impacts to an appropriate level.
The Planning Framework (extracted fron AEF web-site)
The planning system can be divided into two elements: forward planning and development control.
Forward planning comprises the policy and development plan processes.
Development control relates primarily to planning applications, appeals and enforcement.
Forward Planning
Statements of current Government planning policies are contained in a series of Planning Policy Guidance notes (PPGs). PPG 1, General Policy and Principles, states that the:
"planning system has a positive role to play in guiding appropriate development to the right place, as well as preventing development which is not acceptable. It must make adequate provision for development .... and at the same time take account of the need to protect the natural and built environment"
"It should operate on the basis that applications for development should be allowed, having regard to the development plan and all material considerations, unless the proposed development would cause demonstrable harm to interests of acknowledged importance. "
The Government favours a plan-led approach to planning control in the UK: Section 70(A) of the Town and Country Planning Act 1990 and section 54(A), inserted by the Planning and Compensation Act 1991, have made the development plan the starting point for the decision-making process.
Every area in the country is covered by a development plan. For non-metropolitan or rural areas, a two-tier system usually applies which comprises:
Structure Plans - these set out the strategic planning policies in respect of development, infrastructure, and the need to protect the environment. Structure Plans are generally introduced on a county-wide basis and are the responsibility of the County Council.
Local Plans - these provide detailed planning policies for a district-wide area. All LPAs (i.e. the District or Borough Council) are required to determine, publish,and have responsibility for, a Local Plan.
The new Development Plan status granted by the Planning and Compensation Act 1991 has meant that many Local and Structure Plans have required updating.
Development Control (extracted fron AEF web-site)
Planning permission is normally required for any development, defined in Section 55 and Section 336 of the Town and Country Planning Act 1990 as:
"the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any building or other land".
When an application for development is submitted it should be determined in accordance with the development plan, where the plan is material to that application. Applications which are not in accordance with the development plan will usually only be permitted where the applicant is able to prove that there are other material considerations which demonstrate why a particular policy should not apply.
The plan-led approach will also apply to the determination of planning appeals, including enforcement action.
Before providing a brief summary of the planning application procedure, it should be noted that certain works do not always constitute development and will, therefore, not require planning permission. Such exemptions may include works to the interior of a building and the incidental use of land and buildings within the curtilage of a dwellinghouse. As an example of the latter, the landing and taking-off of a private helicopter within the grounds of the owner's dwelling may not constitute development, but would instead be regarded as a use ancillary to the enjoyment of the dwelling. Furthermore, Class B, Part 4, the Town and Country Planning (General Permitted Development) Order 1995 (GPDO) gives permitted development rights to the use of land which is not within the curtilage of a building, and for the provision of any moveable structure in connection with the permitted use, for up to 28 days in a calendar year. The 28 days do not have to run consecutively. For instance, this would permit a field or other open area not usually associated with aviation activity to be used for the purposes of an airstrip, or for a helicopter landing site, on weekends during the summer months (although if applicable 4, the operator would still need to apply for an aerodrome licence from the CAA).
Part 18 (Aviation Development) of the GPDO, provides deemed consent for development by "relevant airport operators" and their Agents at, and within 8 kilometres of, "relevant airports"; and by the CAA in relation to navigation and monitoring services. "Relevant" applies to airports which have the permission of the CAA to levy airport charges (as defined by the Airports Act 1986). An airport may apply for such permission when it becomes subject to economic regulation: this comes into force where the annual turnover of the airport operator exceeds �1 million over at least two out of the previous three successive financial years. It is understood that the definition of turnover may include revenue which the operator receives from non-operational, or even non-aviation, activities which take place on the aerodrome. It is possible, therefore, for an operator to include such activities in its calculation of turnover in order to achieve the �1 million threshold necessary to apply for permission to levy airport charges, thereby bringing the airport within the scope of the GPDO. The provisions of the GPDO also apply to development at airports owned or managed by any subsidiary of the CAA or, in the context of providing works related to navigation, to airports where the CAA provides air traffic control services. White the permitted development rights available under Part 18 do not permit the construction or modification of a runway, they are nevertheless considerable and include:
The construction of a new terminal building where the total floorspace does not exceed 500 square metres (excluding the floorspace of any piers or satellites);
a the extension/alteration of a terminal where the increase in floorspace does not exceed 15% of the original floorspace as existed at 5 December 1988, or at the time of building, if the terminal was constructed after that date;
the construction of operational buildings (this can include a wide range of development such as hangars for maintenance or storage) on condition that an operator consults with the LPA if the dimensions of the building exceed 4 metres in height or 200 cubic metres in capacity; and
a other works related to navigation.
While individual developments may not have a significant impact on the environment, the cumulative effects may do so either directly or by reason that the airport becomes more attractive to users than would otherwise be the case. Hence, except in cases where an Article 4 Direction" is in force or where the permitted development falls within the scope of the 1988 environmental assessment regulations', planning control is substantially taken out of the hands of a LPA.
Most aviation developments will require planning permission which will involve the submission of a planning application to the LPA.
Unless otherwise agreed between the applicant and the LPA, the application should normally be determined within 8 weeks of the date of submission.
Information regarding the potential environmental impacts of the development may also be required where it is material to the proposed development.
The undertaking of an Environmental Impact Assessment (EIA) and the submission of an accompanying Environmental Statement (ES) is only required for a proposal which falls under Schedule 1 or 2 of the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (amended 1990, 1992 and 1994), which implements EC Directive 85/337/EEC. Under the Regulations, an EIA is mandatory for Schedule 1 projects which include proposals for the construction of an aerodrome having a basic runway length of 2,100m or more. Schedule 2 projects will require an EIA at the discretion of the LPA and should be judged with respect to the size, nature, and location of the proposed development. Generally, this will relate to the construction of aerodromes not falling within the terms of Schedule 1, and modifications to developments where the original development would have required an EIA under Schedule 1. However, to date EIAs have been requested under schedule 2 for a range of aviation developments including some "greenfield" grass airstrips and facilities for landing helicopters. Guidance on the requirements of the Regulations is provided in DoE Circular 15/88 and in "Environmental Assessment - A Guide to the Procedures" (DoE, HMSO 11/89). In general terms the cost of an EIA is borne by the developer. Since 3 June 1995, permitted development rights no longer apply to projects which fall under schedule 1 of the Town & Country Planning (Assessment of Environmental Effects) Regulations 1988 or to schedule 2 projects where the development is likely to give rise to significant environmental effects. Where an EIA is required, the developer must submit a planning application for the proposed project. There is provision for developers to seek the LPA's decision on whether an assessment is required, and for the right of appeal to the Secretary of State for the Environment.
A LPA should take a decision on whether to grant or refuse an application after taking into account all material considerations, the relevant development plan policies, and, if applicable, the information provided in an ES.
The LPA can impose planning conditions, or may enter into a planning obligation with the developer (or alternatively, a developer may offer an obligation as a "unilateral undertaking") in order to control a development which might otherwise be considered unacceptable.
Where planning permission is refused or granted subject to planning conditions, the applicant has the right to appeal to the Secretary of State for the Environment.
This right also extends to situations where the LPA fails to determine the application within 8 weeks or such other period as may have been agreed between the LPA and the applicant.
In such cases, the Secretary of State will normally arrange for the appeal to be determined by a written or public inquiry conducted by an appointed Inspector.
If an application is likely to have a widespread and significant effect, the Secretary of State for the Environment has the power to "call in" planning decisions of sufficient importance. This process will also involve the appointment of an Inspector to conduct a public inquiry. Although the power is discretionary, third parties may write to the Secretary of State for the Environment setting out their arguments and requesting that he consider "calling-in" the application for his determination (such a case may have added weight if it also has the support of other bodies, local organizations and Members of Parliament).
The means of limiting or controlling the location, or extent of operation, of airfields from the a planning standpoint involves four related mechanisms which should be considered in broad principle. These are:
1. Development Plans,
2. Planning Control,
3. Planning Injunctions, and
4. Agreements, including Obligations entered into under Section 106 and Sections 106A and 106B of the TCPA 1990, as amended by the PCA 1991.
Constraint by Planning Conditions (extracted fron AEF web-site)
Planning applications for large scale development are normally first made as an Outline Application, in which the entire development site is specified and points of road access indicated.
The viability of the proposal and the need for an assessment of its environmental effects may also be considered at this stage.
If the application is approved, Outline Planning Permission will include as conditions various requirements thought necessary by the LPA 8. These will include conditions of relevance to the particular aerodrome situation for the aerodrome owner, developer or occupier to apply when seeking detailed planning permission. The LPA 9 has power to attach further conditions to the detailed planning consent to enable the development to proceed "where it would otherwise be necessary to refuse permission" (PPG 1, para. 46). It will normally attach a set of "standard conditions" (which comprise the statutory time-limiting conditions in relation to the development) to a planning permission, but it is open to it to attach further conditions of relevance to the particular aerodrome situation, subject to certain limitations to be discussed later. The authority to attach conditions is provided under Section 70(1) of the Town and Country Planning Act 1990, and additional guidance is given in Department of the Environment Circular No. 1/85. Conditions relate to -
(i) the setting of a time limit for commencement of the development (s.73(2) of the 1990 Act, and for completion after service of a Completion Notice under s.94 of the same Act):
(ii) regulating the development, including (if appropriate) the use of land under the control of the applicant - including land controlled by the applicant, although not forming part of the application site:
(iii) requiring a use (other than an "established use") to be discontinued, or building or engineering works to be removed at the end of a specified period.
Section 70(1) of the 1990 Act enables a LPA to grant planning permission "either conditionally, or subject to such conditions as they think fit". The expression "as they think fit" has been interpreted by the Courts in Pyx Concrete Co. Ltd. v Minister of Housing and Local Government (1958) QB 554 at page 554 and, by the House of Lords, in Newbury District Council v Secretary of State for the Environment (1980) AC 578; (1980) JPL 325. In the latter case their Lordships laid down three basic requirements for planning conditions:
(i) they must be imposed for a planning purpose, and not for any ulterior purpose;
(ii) they must fairly and reasonably relate to the development being permitted;
(iii) they must not be so unreasonable that no reasonable (Planning) Authority could have imposed them.
The concept that "no reasonable Authority could have imposed them" is a normal catchall used in the Courts, under which attempts are not infrequently made to disguise findings of fact as a "point of law" in an endeavour to validate an Appeal: and it may or may not succeed.
"Unreasonable" is normally taken to mean that a condition shall not be so arbitrary or biased that no reasonable planning authority could have applied it. For example, in circumstances where an aerodrome is not permanently staffed during operating hours and does not keep accurate records of movements, it might be claimed that a condition which seeks to impose limitations on the number of aircraft take-offs and landings would be unenforceable 10: and an attempt to impose such a regime by a planning condition which would effectively require permanent staffing in order to satisfy that condition, may be found by a court to be "arbitrary" (unreasonably restrictive), and thus invalid (see paragraphs 35 and 72). In addition, it would be impractical for a LPA to attempt to stipulate the number of take-offs and landings in terms of a planning condition based upon any existing or previous pattern for an allegedly comparable aerodrome.
It should be noted that Department of the Environment Circular 1/85 provides six tests to be applied by LPAs when considering any proposed planning condition:
(a) is it necessary?
(b) is it relevant to planning?
(c) is it relevant to the development under consideration?
(d) is it enforceable?
(e) is it precise?
(f) is it reasonable in all respects?
All these factors can relate to a planning application in respect of an aerodrome, but points (d) and (e) are particularly relevant to this discussion. Unless a planning condition specifically requires records to be kept, problems of enforceability and precision may arise since, as previously mentioned, there is no statutory requirement for aerodromes to keep accurate records of aircraft movements other than at reporting aerodromes.
A planning condition should be clearly defined: in the absence of precision, there may be a lack of enforceability.
A list of suggested conditions appropriate to aerodrome developments is given at Annex 4 of PPG 24 "Planning and Noise".
Circulars and PPG notes do not constitute statutory legalisation. They are statements of policy only, and are therefore not legally binding. Nevertheless, as statements of policy they may have a bearing upon what the Court might find (if litigation takes place) to be a "reasonable" decision by a LPA.
The Courts have tended to be more liberal than the Secretary of State for the Environment (and all his predecessors in title), particularly when considering the powers of a LPA to apply planning conditions. In Alnatt London Properties Ltd. v Middlesex County Council (1964) 15 P & C.R. 288, a planning condition was held to be void because it removed "existing use rights", i.e. rights acquired by user (continuous use) of the land by the owner or occupier over a period of years; but the Courts have subsequently adopted a more accommodating view, as in Kingston-upon-Thames Royal London Borough v Secretary of State for the Environment (1973) 1 WLR 1549.
Paragraph 21 of Circular 1/85 states "...it is not sufficient that a condition is related to planning objectives; it must also be called for by the nature of the development permitted or its effects on the surroundings". In this respect, it is suggested that a "planning objective" must per se encompass the nature of any development within its surroundings, unless the stated planning objective is in itself unsound.
In the majority of cases relating to control of aerodrome activities the conditions applied relate to noise and/or vibration impact arising from aviation related sources. Such planning conditions must be "reasonable" in legal terms. According to paragraph 35 of the Circular "any unreasonable condition does not become reasonable because an applicant suggests it, or consents to its terms." However, a LPA might reasonably apply a related planning condition and await an appeal to the Secretary of State for the Environment (or if the condition has been imposed by the Secretary of State or his appointed representative, an application to the High Court) as to the validity of that condition.
Following appeals, there have been several situations in which the Secretary of State has discharged (negated) a planning condition on the grounds that it was ultra vires (i.e. beyond the legal powers of the LPA), as in British Airports Authority v Secretary of State for Scotland (1980) JPL 260, in which a condition was imposed on the grant of planning permission for development of Aberdeen Airport in regard to the flight paths for take-off and landing. The action of the Secretary of State was based on the principle that the planning applicants had no control over flight paths, since the statutory power to regulate flight paths lay with the CAA/NATS and not with the airport itself; and that, in consequence, the applicants would be unable to secure compliance with the planning conditions. However, it is unclear as to whether the same ruling would apply in respect of unlicensed facilities operating in uncontrolled airspace, over whom the CAA/NATS has no jurisdiction.
Circular 1/85, "The use of Conditions in Planning Permissions" at paragraph 2 and paragraphs 11-15 of the Annex, provides that in addition to satisfying the Court's criteria for validity, conditions should not be imposed unless they are necessary and effective, and do not place unjustifiable burdens on applicants. Furthermore, paragraph 31 states that "even where a condition is not so unreasonably restrictive as to be ultra vires it may still be so onerous that as a matter of policy it should be avoided". However this introduces the element of "policy", which may or may not be related to "reasonableness" and thereby complicates that definition. It begs the question as to what is the appropriate "policy"; namely, is it a question of local policy or national policy? However, paragraph 18 of the same Circular emphasises that planning conditions should not seek to duplicate other provisions within planning legislation, and that any such attempt at duplication will be regarded as ultra vires.
In terms of the relevance of a planning condition to the particular development, paragraphs 20 and 21 of the Circular indicate that it is open to an airfield operator (or intending operator) to make an offer, but then to renege from it - thus distinguishing planning provisions from the normal principles of the taw of contract in terms of offer and acceptance. However, the purpose of this statement is, no doubt, to emphasize to LPAs that unreasonable persuasion should not be applied to a potential airfield developer such as to cause him to agree to a future situation or regime which could be contrary to proper planning objectives.
Conditions restricting take-offs and landings may be, and indeed are, imposed by LPAs (in fact, the use of planning conditions to limit the number of permitted aircraft movements is suggested in PPG 24). This may be particularly relevant where an aerodrome provides some degree of stated air traffic control (whether or not it is a full service or an information/advisory service): the function of logging aircraft movements is often given to the person responsible for providing the air traffic service. A condition requiring the keeping of records may be a necessary means of ensuring that related planning conditions are enforceable since at many aerodromes (except reporting aerodromes) it is not compulsory to keep records of individual movements.
Enforcement of Planning Conditions (extracted fron AEF web-site)
A planning condition, in order to be valid, must be capable of enforcement by the LPA.
Development including both construction (i.e. building or engineering works) and "material change of use" - can be prevented or limited.
If planning control is ignored, a structure can be required to be demolished by the developer or, if he refuses to do so, by the LPA after following laid down procedures; the cost being recoverable from the transgressor.
The legal provisions concerning enforcement were greatly strengthened by Part 1 of the Planning and Compensation Act 1991, based upon the recommendations of Robert Camwath QC in "Enforcing Planning Control" (published by the Department of the Environment, April 1989), The 1991 Act provides LPAs with new enforcement procedures which offer greater flexibility in the drafting and service of Enforcement Notices - these having previously suffered from unnecessary obstacles as a result of the mere wording of such a Notice. In addition, LPAs have been given greater powers to execute works required by an Enforcement Notice, with increased right of entry onto land for the purpose of enforcement. Penalties for non-compliance have also been increased.
A LPA should be sure of the facts before issuing an Enforcement Notice. The Carnwath Report recommended that a statutory procedure be introduced to enable a LPA to obtain information and co-operation from the owner (and occupier) of land without the need first to issue an Enforcement Notice. Consequently, section 1 of the Planning and Compensation Act 1991 inserts new Sections 171C and 171D into the Town and Country Planning Act 1990 enabling the LPA to serve a "Planning Contravention Notice" in cases where "...it appears to the local planning authority that there may have been (author's italics), a breach of planning control in respect of any land". This notice can require any relevant person upon whom it is served to provide information and to state specifically whether or not the land is being used for any purpose specified in the Notice and whether any operations or activities so specified in the Notice are being or have been (author's italics) carried out on the site in question. Thus, the use of Enforcement Notices to prevent or rectify breaches of planning control has been rendered more effective.
The Planning and Compensation Act 1991 gave local authorities the power to serve a Breach of Condition Notice inserted as Section 187A of the TCPA 1990. The Notice should state the steps required to comply with the condition, and a period for compliance which must not be less than 28 days. Unlike Enforcement Notices, there is no right of appeal in respect of a Breach of Condition Notice: the right of appeal was deemed to be unnecessary since the developer had accepted the conditions by not appealing against the original planning permission (although an application for judicial review may be made to the High Court if the local authority fails to follow the correct procedure in serving the Notice). Once the compliance period has expired the breach becomes a criminal offence. This notice is effective in enforcing hours of operation. It should be noted that all notices "run with the land" and will therefore continue to apply following any transfer of ownership or tenancy.
Before the Planning and Compensation Act 1991, the only further step open to the LPA was to issue a Stop Notice - now under Section 183 of the Town and Planning Act 1990. The penalty on summary conviction for failure to comply with a Stop Notice has been increased by the 1990 Act from a mere �2,000 to �20,000. However, there is a constraint: LPAs have in the past not infrequently been deterred from issuing a Stop Notice because, in the event of a successful legal (not planning) appeal compensation will become payable by the LPA to the owner of the land affected. However, this financial liability has now been greatly reduced by the 1991 Act in cases where the activity during the period when the Notice is in force constitutes, or contributes to, a breach of planning control.
In London Docklands Development Corporation v Rank Hovis McDougal Ltd. (1990) JPL 1124 the Court of Appeal held that a Development Corporation is technically not an LPA, and therefore does not have the specific statutory rights as to Stop Notices. A judicial view has been expressed that a LPA must be in a position to put a very strong case as to potential damage to a local environment, and as to urgency, if they are to succeed.
Where there is a breach of planning control resulting from the failure to comply with a planning condition, or from the carrying out of development without planning permission, enforcement action must be started within the prescribed time limit. The time limit for a breach which consists of "the carrying out of building, engineering, mining or other operations in, on, over or under land" is four years from the date on which operations were substantially completed (this time limit also applies to the change of use of any building to a single dwellinghouse). The time limit for all other breaches of planning control is ten years beginning with the date of the breach. Generally, unless enforcement action has previously been taken in relation to the same breach, or has been started within the above time limits, no enforcement action may be taken. In such cases, the land owner/operator may apply to the LPA for a Certificate of Lawful Use or Development (as inserted by section 10 of the Planning and Compensation Act 1991).
Planning Injunctions (Extracted from AEF web-site)
There are occasions on which a breach of planning control can justify an application being made in the High Court for an injunction. This will apply principally where very prompt restraint is necessary. An injunction is a discretionary remedy, and thus may be granted or refused by the judge at his discretion. Until comparatively recently an injunction would not be granted in cases where a criminal sanction - such as a statutory fine - should apply. In Runnymede Borough Council v Ball and Others (1986) 1 All E.R. 629, in which the Court of Appeal held that resort to the Civil Courts prior to criminal proceedings having been completed was legally acceptable in cases where the delay incurred in a prosecution would have produced an irremediable situation. An Application for an injunction - or a temporary injunction - can (it is said!) even be made to a judge when occupied on the golf course. The power to apply for a planning injunction is specifically vested in a LPA by virtue of section 187B of the TCPA 1990, as inserted by section 3 of the PCA 1991.
Copyright, 2003. Swindon Plane Campaign.